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Published online by Cambridge University Press: 20 June 2018
How should anti-paternalists deal with policies that seem to be simultaneously reasonable and paternalistic? In the literature, anti-paternalists have sought to show that many policies that prevent people from harming themselves can be justified without appeal to the good accruing to the people interfered with; that is, without appeal to paternalistic reasons. However, while perhaps identifying sufficient non-paternalistic reasons for supporting these policies under realistic circumstances, anti-paternalists often fail, I argue, to identify satisfactory reasons that adequately reflect our underlying concerns pertaining to such policies. Included in those concerns are arguably the interests and well-being of the people whose choices are restricted by the policy in question. In this way, this article reveals that the strategy of reconciling anti-paternalism with seemingly paternalistic policies is beset by serious problems.
1 Feinberg, J., Harm to Self (New York and Oxford, 1986), pp. 25, 135Google Scholar, 142. See also de Marneffe, P., ‘Avoiding Paternalism’, Philosophy & Public Affairs 34 (2006), pp. 68–94CrossRefGoogle Scholar, at 68; Kleinig, J., Paternalism (New Jersey, 1984), p. 82Google Scholar.
2 This term is attributable to Peter de Marneffe, who finds inspiration from Feinberg's characterization of the strategy. See de Marneffe, ‘Avoiding Paternalism’, p. 68; Feinberg, Harm to Self, p. 25.
3 Shiffrin, S., ‘Paternalism, Unconscionability Doctrine, and Accommodation’, Philosophy & Public Affairs 29 (2005), pp. 205–50CrossRefGoogle Scholar.
4 Feinberg, Harm to Self, pp. 134–42.
5 Anderson, E., ‘What is the Point of Equality?’, Ethics 109 (1999), pp. 287–337CrossRefGoogle Scholar, at 314, 316, 319, 329–30.
6 Bou-Habib, P., ‘Compulsory Insurance without Paternalism’, Utilitas 18 (2006), pp. 243–63CrossRefGoogle Scholar.
7 See e.g. de Marneffe, ‘Avoiding Paternalism’, p. 74.
8 Feinberg, Harm to Self, pp. 4, 25–6. Feinberg's principle focuses, however, on criminal prohibitions rather than, more broadly, infringements of autonomy. As a number of theorists have argued, Feinberg's focus is plausibly too narrow to embed the worries of anti-paternalists. See e.g. Begon, J., ‘Paternalism’, Analysis Reviews 76 (2016), pp. 355–73CrossRefGoogle Scholar, at 357; Dworkin, G., ‘Paternalism: Some Second Thoughts’, The Theory and Practice of Autonomy, ed. Dworkin, G. (Cambridge, 1988), pp. 121–9CrossRefGoogle Scholar, at 123.
9 Feinberg, Harm to Self, p. 26. This is a rather strong form of anti-paternalism. At the same time, the opposite paternalist position appears somewhat weak if one can be a paternalist without ever finding the paternalistic reason decisive. Accordingly, it may be argued that the class of anti-paternalists should also include those who believe that the reason for preventing self-regarding harm is relevant and valid, but always outweighed by reasons of respecting individual autonomy. Whether the former or latter reason-based distinction between paternalism and anti-paternalism is preferable is unimportant to my argument, which is compatible with both conceptions.
10 Here, I am greatly inspired by de Marneffe, ‘Avoiding Paternalism’, p. 74.
11 de Marneffe, ‘Avoiding Paternalism’, p. 69.
12 Arneson, R., ‘Joel Feinberg and the Justification of Hard Paternalism’, Legal Theory 11 (2005), pp. 259–84CrossRefGoogle Scholar, at 272. Relatedly, de Marneffe defends a definition of paternalistic policies which implies that ‘if there is sufficient nonpaternalistic reason for a policy, then it is not paternalistic’. De Marneffe, ‘Avoiding Paternalism’, p. 74.
13 Shiffrin, ‘Paternalism, Unconscionability Doctrine, and Accommodation’, pp. 208, 207, 212; see also de Marneffe, ‘Avoiding Paternalism’, p. 77.
14 Shiffrin, ‘Paternalism, Unconscionability Doctrine, and Accommodation’, p. 205.
15 Shiffrin, ‘Paternalism, Unconscionability Doctrine, and Accommodation’, p. 211.
16 Shiffrin, ‘Paternalism, Unconscionability Doctrine, and Accommodation’, p. 207.
17 Shiffrin, ‘Paternalism, Unconscionability Doctrine, and Accommodation’, p. 221.
18 Shiffrin, ‘Paternalism, Unconscionability Doctrine, and Accommodation’, p. 221.
19 Shiffrin, ‘Paternalism, Unconscionability Doctrine, and Accommodation’, p. 224 (emphasis added).
20 Shiffrin, ‘Paternalism, Unconscionability Doctrine, and Accommodation’, p. 224.
21 Shiffrin, ‘Paternalism, Unconscionability Doctrine, and Accommodation’, p. 224.
22 See e.g. Shiffrin, ‘Paternalism, Unconscionability Doctrine, and Accommodation’, p. 210.
23 Kristol, I., ‘Pornography, Obscenity, and the Case for Censorship’, New York Times Magazine, 28 March 1971, p. 24Google Scholar. Feinberg refers to this case by Kristol in Feinberg, J., Harmless Wrongdoing (New York and Oxford, 1988), pp. 128–9Google Scholar.
24 Shiffrin, ‘Paternalism, Unconscionability Doctrine, and Accommodation’, p. 224.
25 However, it should be pointed out that one Utilitas referee does not share my intuition in this case.
26 Cf. Tadros, V., ‘Consent to Harm’, Current Legal Problems 64 (2011), pp. 23–49CrossRefGoogle Scholar.
27 Mill, J. S., On Liberty (New York, 1956), p. 125Google Scholar.
28 Mill, On Liberty, p. 125.
29 See e.g. Feinberg, J., ‘Legal Paternalism’, Canadian Journal of Philosophy 1 (1971), pp. 105–24CrossRefGoogle Scholar, at 116–17; Arneson, R., ‘Mill versus Paternalism’, Ethics 90 (1980), pp. 470–89CrossRefGoogle Scholar, at 486; Dworkin, G., ‘Paternalism’, The Monist 1 (1972), pp. 64–84CrossRefGoogle Scholar, at 75–6.
30 Feinberg, ‘Legal Paternalism’, pp. 117–19.
31 Feinberg, ‘Legal Paternalism’, p. 117; see also Dworkin, ‘Some Second Thoughts’, p. 126.
32 In fact, Feinberg points out some motives that people may have for voluntarily consenting to become slaves. See Feinberg, ‘Legal Paternalism’, p. 117.
33 Feinberg, ‘Legal Paternalism’, p. 119.
34 Feinberg, ‘Legal Paternalism’, p. 119.
35 Feinberg, Harm to Self, p. 75.
36 This general objection to Feinberg's argument is stated in Pedersen, V. and Midtgaard, S., ‘Is Anti-Paternalism Enough?’, Political Studies, doi: 10.1177/0032321717734515 (2017)Google Scholar.
37 Note that I have already excluded potential spectator problems, which include, for example, concerns such as those Feinberg raises that attending the fight will lead to brutalization among the spectators. Feinberg, Harmless Wrongdoing, pp. 131–2.
38 Not that I am convinced that this would in itself justify the state in preventing Rita from harming herself.
39 This latter legal moralistic argument should not be confused with moral paternalism in that it appeals to ‘the mere immorality of the conduct interfered with’ rather than ‘the harm done to the agent's character’. G. Dworkin, ‘Paternalism’, The Stanford Encyclopedia of Philosophy, E. N. Zalta (ed.), <https://plato.stanford.edu/archives/win2017/entries/paternalism/> (2017).
40 Feinberg, ‘Legal Paternalism’, p. 188; Feinberg, Harm to Self, p. 81.
41 Feinberg, ‘Legal Paternalism’, p. 108.
42 Feinberg, Harmless Wrongdoing, p. 5.
43 Feinberg, Harmless Wrongdoing, pp. 6, 130–1.
44 Feinberg, ‘Legal Paternalism’, p. 118.
45 Anderson, ‘What is the Point’, p. 319.
46 Feinberg, ‘Legal Paternalism’, p. 118.
47 Midtgaard, S. F., ‘Non-Renounceable Rights, Paternalism, and Autonomy’, Utilitas 27 (2015), pp. 347–64CrossRefGoogle Scholar, at 362.
48 Furthermore, Rita has bought the parts for the robot herself. It is not the case that someone else owns the robot and lends it to Rita for the fight.
49 See also Dworkin, ‘Some Second Thoughts’, p. 126.
50 For defenders of the view that moral rights and principles should be tested on a higher level of abstraction, see e.g. Arneson, ‘Joel Feinberg’, pp. 273–4; Cohen, G. A., Rescuing Justice and Equality (Cambridge, 2008), p. 268CrossRefGoogle Scholar.
51 Feinberg, Harm to Self, p. 25.
52 It may be argued that this correction or clarification is redundant in that no one denies that paternalists can accept non-paternalistic reasons. There is, however, a tendency to assume that paternalists must endorse policies that benefit people. For example, according to Shiffrin, ‘[t]hose who endorse paternalism would have to defend a broader range of interferences and omissions – including cases like Intervention [where an uninvolved party intervenes to prevent an agreement] and Fines [where the uninvolved party imposes fines or in other ways complicates the implementation of the contract, again because he believes it harms one of the parties]’. See Shiffrin, ‘Paternalism, Unconscionability Doctrine, and Accommodation’, pp. 231, 225. While I agree with Shiffrin that most paternalists plausibly would endorse the restrictions in question, I disagree that they would necessarily have to.
53 For helpful comments on various versions of this article, I am grateful to: the members of the Political Theory Section, Department of Political Science, University of Aarhus; participants in the ‘Europe on Distributive Justice’ conference, 14–16 June 2017, at the same institution; participants in the ‘Festival of Ideas 2’ workshop, 30–31 March 2017, Law and Philosophy, Universitat Pompeu Fabra, in Barcelona. I am especially thankful to Søren Flinch Midtgaard, Kasper Lippert-Rasmussen, Serena Olsaretti, Andrew Williams and Jens Damgaard Thaysen for detailed written comments and helpful conversations. I would also like to thank the editor and two anonymous referees for their insightful and constructive reviews.
